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Frequently Asked Questions - Hip Implant Law

1. Can breach of contract be applied to a medical malpractice case? Courts will usually impose such a high standard for proving this, that rarely will an attorney suggest this route. Occasionally, breach of contract will be applied to abandonment situations, but a patient would have to prove that his lack of care was intentional and quite prolonged.

2. Are physicians responsible for honest mistakes of judgment or for an unusual consequence resulting for surgery or treatment? No they are not. Therefore, even though there are increasing numbers of medical malpractice brought to courts, it can be difficult to win. Remember, physicians are not considered guarantors of a cure.

3. Can I bring a breach of warranty suit against my physician? Generally, no. Physicians are not considered to be “merchants of sale.” These types of cases are usually brought against the manufacturer.

4. My physician help design the therapeutic device that I’m using. Could he now be held responsible if the device is found to be defective? Often times, yes.

5. Is there a cap to the amount of damages I can recover? Over the last several years, this question was brought to many state legislatures and with favorable interest. However, speaking generally, at this time there is not usually a cap on damages.

6. Does contributory negligence apply in medical related lawsuits? Most definitely, it can. If a patient breaches his duties (i.e. provide complete and accurate medical history), it can serve to negate the patient’s ability to recover from the physician, or limit his award.

7. Besides providing my accurate health history, what other ways can I be contributorily negligent? Both leaving the hospital against medical advice or failing to follow a physician’s instructions, can be used to prove contributory negligence.

8. Can I also sue the hospital for care that I received? In most cases, yes.

9. My surgery didn’t turn out the way that I expected. Do I have a case? Just because a surgery didn’t turn out as planned doesn’t mean that you have an actionable negligence claim. Contact an attorney so that he can review all the details of your care.

10. I had hip replacement surgery that led to a great deal of pain and infection? Who do I sue, the physician or the manufacturer? It will depend on whether the pain and infection was caused by the surgery to put the device in, which was performed by the physician; or a faulty product in which case it would likely be advisable to go after the manufacturer. You should contact an attorney who will advise you of the best course of action based on the specifics related to you case.   

GENERAL PERSONAL INJURY FAQ

1. What is a counterclaim? A claim that the defendant in a suit has against the plaintiff from the same transaction.

2. What is discovery and what is its purpose? Discovery allows both parties to “discover” information in the case. The purpose is to narrow the basis of the complaint and to eliminate surprises to both parties.

3. What are interrogatories? Written questions by one party to the other, which are answered under oath.

4. What is a deposition? A formal interview under oath in the presence of a court reporter. The answers in a deposition are oral.

5. Will I end up at trial? Only about 25% of all personal injury cases end in a court; most will settle.

6. I was ordered to pay “costs;” what does that include? Usually it will include attorney, clerk, witness, and docket fees.

7. What is civil law? Principles that govern relationships between people, where no crime has been committed.

8. What is a class action lawsuit? When a large group of plaintiffs sue a large group of defendants naming a representative in place of the entire group. Examples would be the tobacco industry suits and the suits against the drug manufactures of the popular diet medications, such as fen-phen.

9. What is negligence? A failure to act reasonably in a situation. Doing something carelessly or failing to do something; i.e. driving without your headlights on.

10. What are punitive damages? Damages awarded to punish the defendant.

11. What does pain and suffering include? This would generally be money awarded over and above medical costs and lost wages.

12. What is loss of consortium? A loss of companionship and care for the victim’s marital partner.

13. What is contributory negligence? A defense to negligence stating that the plaintiff’s negligence contributed to their injuries.

14. What is a tort? Conduct intended to harm another person or their property. Examples include fraud, misrepresentation and slander.

15. How is negligence determined? Negligence does not simple mean doing something wrong. All of the following elements must exist for an act to be considered negligent:

a. Lack of reasonable care
b. Breach of duty
c. Injury to the victim
d. Forseeability (knowing an act would occur based on the circumstances)
e. Damages

16. What is the statute of limitation in a civil case? Generally 2 years from the date the incident occurred.

17. I’ve heard the phrase “assumption of risk.” What does it mean? It is used as part of a defendant’s defense. It states that a user assumes risk in the following ways:

a. If you’ve discovered the risk, but disregard it
b. If you’ve failed to properly maintain an item
c. If you’ve failed to follow the enclosed directions

18. What is an appellant? The party who lost at trial is called an appellant on appeal.

19. What is emotional distress? Mental anguish.

20. What are injunctions? Court orders for defendant’s to stop them from doing something (i.e. temporary restraining orders).

21. What is litigation? A lawsuit.

22. What does “res ipsa loquitor” mean? It is a Latin phrase meaning, “the thing speaks for itself.”

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